Non-contractual liability of the European Union, Warsaw 2016, pp. 500.

My book about non-contractual liability of the European Union ("Pozaumowna odpowiedzialność odszkodowawcza Unii Europejskiej") is being published by Wolters Kluwer Warsaw. It will be available for purchase on November 19th, 2015 online (Księgarnia Proinfo) and in the bookstores.

In its order of November 20th 2017 the Court of Justice ruled that Poland must immediately cease its active forest management operations in the Białowieża Forest, except in exceptional cases where they are strictly necessary to ensure public safety. If Poland is found to have infringed this order, the Court will order it to pay to the Commission a penalty payment of at least €100 000 per day. Article 279 TFEU confers on the Court the power to prescribe any interim measures that it deems necessary in order to ensure that the final decision is fully effective. Such a measure may entail, inter alia, provision for a penalty payment to be imposed should that order not be respected by the relevant party. Since the prospect of a penalty payment being imposed in such a situation discourages the relevant Member State from failing to respect the interim measures ordered, it bolsters the effectiveness of those measures and guarantees the full effectiveness of the final decision, thus falling entirely within the ambit of the objective of Article 279 TFEU. Providing for the imposition of penalty payments for the sole purpose of ensuring that the interim measures at issue are complied with does not prejudge the future decision in the main action. In the present case, there is sufficient material in the file to give the Court grounds for doubting that Poland has complied with the order of the Vice-President of the Court of 27 July 2017 or that it is prepared to adhere to today’s order until the date of the final decision. In such circumstances, it appears necessary to bolster the effectiveness of the interim measures granted today by providing for penalty payments to be imposed if Poland fails to comply immediately and fully with the interim measures, for the purpose of discouraging Poland from delaying its compliance with today’s order. To that end, the Court orders Poland to send to the Commission, within 15 days of notification of the order, details of all measures that it has adopted in order to comply fully, detailing, with justifications, the active forest management operations at issue that it intends to continue because they are necessary to ensure public safety.

Arguing Facebook violated privacy rules, Max Schrems is claiming 500 euros ($576) in damages for each of some 25,000 signatories to his lawsuit, one of a series of European challenges to U.S. technology firms and their handling of personal data.

“A consumer who is entitled to sue his foreign contact partner in his own place of domicile, cannot invoke, at the same time as his own claims, claims on the same subject assigned by other consumers,” the EU top court’s Advocate General Michal Bobek said.

The advocate general, whose opinions are not binding but usually followed by the court, said allowing a class action suit in this case would lead consumers to choose the place of the most favorable court.

Privacy activist Schrems, who had argued that individual lawsuits on user privacy would be “impossible” due to the financial burden on users, said a ruling in line with the advocate general’s opinion would still allow him to set a precedent.

“In the advocate general’s view, I can at least bring a ‘model case’ at my home jurisdiction in Vienna, which may enable us to debate the illegal practices of Facebook in an open court for the first time,” Schrems said in a statement.

Facebook said the advocate general’s opinion supported the decision of two courts that Schrem’s claims could not proceed as a class action.

While common in the United States, class action suits are rarely recognized in Europe.

“It is not for the Court to create such collective redress in consumer matters, but eventually for the Union legislator,” the Advocate General said.

The European Commission has decided to refer Poland to the Court of Justice of the EU for increased logging in the Białowieża Forest, which is a protected Natura 2000 site. As logging operations have started on a significant scale, the Commission is also requesting the Court for interim measures compelling Poland to suspend the works immediately.

On 25 March 2016, the Polish authorities adopted a decision allowing for a three-fold increase in logging operations in the Białowieża Forest district, as well as for logging in areas so far excluded from any intervention.

These measures - which include the removal of century old trees - pose a major threat to the integrity of this Natura 2000 site. The Natura 2000 site protects species and habitats that are dependent on old-growth forests, including the availability of dead wood. For some of these species, the Białowieża Forest is the most important or the last remaining site in Poland. The available evidence shows that these measures are not compatible with the conservation objectives of the site and exceed those necessary for ensuring the sustainable use of the forest. In addition, the decision was preceded by an inappropriate assessment of the impacts of the measures on the Natura 2000 site.

In April 2017, the Commission issued a reasoned opinion urging Poland to refrain from large scale logging and giving Poland one month to comply. In spite of this, Poland has begun to implement its plan.

Commission expresses grave concern about clear risks for the independence of the judiciary in Poland

July 26th, 2017. On the invitation of President Juncker, First Vice-President Timmermans presented to the College the latest developments with regard to the Polish judiciary and the Rule of Law dialogue, which is ongoing between the Commission and Poland since 13 January 2016. The College of Commissioners expressed grave concerns about four legislative acts recently proposed in Poland: the law on the National Council for the Judiciary; the law on the National School of Judiciary; the law on the Ordinary Courts Organisation; and the law on the Supreme Court. If implemented in their current form, these laws would have a very significant negative impact on the independence of the judiciary and would increase the systemic threat to the rule of law in Poland. Commissioners today held a first in-depth discussion on these new developments, expressed serious concerns, and looked into the legal and political options available to the Commission to act upon these concerns, including another Rule of Law Recommendation to the Polish government and the possibility of infringement proceedings for violation of EU law. The option of triggering Article 7(1) of the Treaty on European Union was also part of the discussion. The College of Commissioners agreed to revert to this issue in its meeting next week on the basis of a comprehensive legal analysis and any observations the Polish authorities and other interested parties and European or international organisations may submit.

The Commission urges the Polish authorities to put the new laws on hold and re-engage in the ongoing Rule of Law dialogue with First Vice-President Timmermans in an attempt to address the serious concerns expressed.

The European Commission has also launched an infringement procedure against Poland on the bases of Art. 258 TFEU by sending a Letter of Formal Notice, following the publication in the Polish Official Journal of the Law on the Ordinary Courts Organisation on 28 July 2017.

EU leaders mark 60th anniversary with Rome declaration

Sixty years after the formation of the EU, 27 leaders from across the continent met in the Italian capital to mark the anniversary of the treaty that founded the European Economic Community, creating a common market and customs union.

All the leaders – even the Polish prime minister, Beata Szydło, who had threeatened to derail the celebrations by not endorsing a “Rome declaration” renewing the countries’ vows of loyalty, largely due to a personal grudge with Tusk – were greeted with a smile.

Only one leader was absent. Theresa May was not invited to the “informal summit”, a description that allows the EU institutions to cut out Britain from events. The prime minister will write to Tusk on Wednesday to formally announce that the EU’s second-biggest economy is to leave the union, a process that will involve two years of negotiations.

On March 25th 2017, the leaders adopted the Rome declaration, which offers ringing phrases about peace and unity. “We, the leaders of 27 member states and of EU institutions, take pride in the achievements of the European Union: the construction of European unity is a bold, far-sighted endeavour,” it says.

“Sixty years ago, recovering from the tragedy of two world wars, we decided to bond together and rebuild our continent from its ashes.

“We have built a unique union with common institutions and strong values, a community of peace, freedom, democracy, human rights and the rule of law, a major economic power with unparalleled levels of social protection and welfare.

“European unity started as the dream of a few, it became the hope of the many. Then Europe became one again. Today, we are united and stronger: hundreds of millions of people across Europe benefit from living in an enlarged union that has overcome the old divides.”

The text concludes: “We have united for the better. Europe is our common future.”

The judgement of the UK Supreme Court on BREXIT.

R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references.

The judgement means Theresa May cannot begin talks with the EU until MPs and peers give their backing - although this is expected to happen in time for the government's 31 March deadline. But the court ruled the Scottish Parliament and Welsh and Northern Ireland assemblies did not need a say.

On 24th January 2017 the Supreme Court by a majority of 8 to 3 dismisses the Secretary of State’s appeal (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting). In a joint judgment of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. Each of the dissenting justices gives a separate judgment.

According to the Supreme Court the withdrawal makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law. Such a fundamental change will be the inevitable effect of a Notice being served. The UK constitution requires such changes to be effected by Parliamentary legislation.

The fact that withdrawal from the EU would remove some existing domestic rights of UK residents also renders it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority.

The fact that ministers are accountable to Parliament for their actions is no answer constitutionally, if the power to act does not exist in the first place and where (as the court has been asked to assume) the exercise of the power would be irrevocable and prempt any Parliamentary action.

Subsequent EU related legislation and events after 1972, including the introduction of Parliamentary controls in relation to decisions made by UK ministers at EU level relating to the competences of the EU or its decision-making processes, but not to the giving of notice under Article 50(2), are entirely consistent with an assumption by Parliament that no power existed to withdraw from the treaties without a statute authorising that course.

The government presented its closing arguments on the final day of the case which will determine whether parliament or ministers have the right to trigger article 50 to leave the European Union.

The NEW opinion of the Venice Commission on the Constitutional Tribunal Act of 22 July 2016.

On 14th October 2016 the European Commission for Democracy through Law adopted new opinion on the Constitutional Tribunal Act of 22 July 2016.

The Venice Commission stated that, by adopting the Act of 22 July (and the Amendments of 22 December), the Polish Parliament assumed powers of constitutional revision which it does not have when it acts as the ordinary legislature, without the requisite majority for constitutional amendments.

Individually and cumulatively, these shortcomings show that instead of unblocking theprecarious situation of the Constitutional Tribunal, the Parliament and Government continue to challenge the Tribunal’s position as the final arbiter of constitutional issues and attribute this authority to themselves. They have created new obstacles to the effective functioning of the Tribunal instead of seeking a solution on the basis of the Constitution and the Tribunal’s judgements, and have acted to further undermine its independence. By prolonging the constitutional crisis, they have obstructed the Constitutional Tribunal, which cannot play its constitutional role as the guardian of democracy, the rule of law and human rights.

In November 2015, the Commission became aware of an ongoing dispute in Poland concerning the composition of the Constitutional Tribunal, as well as the shortening of the mandates of its current President and Vice-President. The Constitutional Tribunal rendered two judgments on these matters, on 3 and 9 December 2015. In addition, the Commission noted that the Sejm (Polish parliament) approved on 22 December 2015 a law amending the law on the Constitutional Tribunal, which concerns the functioning of the Tribunal as well as the independence of its judges.

On 9 March 2016 the Constitutional Tribunal ruled that the Law of 22 December 2015 is unconstitutional. On 11 March, the Venice Commission adopted an opinion in which it found the amendments of 22 December to be incompatible with the requirements of the rule of law. The judgment of 9 March, as well as all judgments rendered by the Constitutional Tribunal since then, have not been published in the Official Journal.

On 13 January 2016, the College of Commissioners held a first orientation debate on the situation as regards the Rule of Law in Poland. This was followed by extensive exchanges in writing between the Commission and the Polish authorities. First Vice-President Timmermans visited Warsaw on 5 April and held constructive talks with a number of his Polish counterparts. Since then, extensive exchanges have taken place between the Commission and the Polish Government in meetings at various levels to seek a resolution of the current duality of legal systems in Poland. However, despite these exchanges, it has not yet been possible to find a solution to the issues identified by the Commission.

The Rule of Law Framework – introduced on 11 March 2014 - has three stages. The entire process is based on a continuous dialogue between the Commission and the Member State concerned. The Commission will keep the European Parliament and Council regularly and closely informed.

Commission assessment: The Commission will collect and examine all the relevant information and assess whether there are clear indications of a systemic threat to the rule of law. If, on this evidence, the Commission believes that there is a systemic threat to the rule of law, it will initiate a dialogue with the Member State concerned, by sending its "rule of law opinion", substantiating its concerns. This opinion serves as a warning to the Member State, and gives the Member State concerned the possibility to respond.

Commission Recommendation: In a second stage, if the matter has not been satisfactorily resolved, the Commission can issue a "rule of law recommendation" addressed to the Member State. In this case, the Commission would recommend that the Member State solves the problems identified within a fixed time limit, and inform the Commission of the steps taken to that effect. The Commission will make public its recommendation.

Follow-up to the Commission Recommendation: In a third stage, the Commission will monitor the follow-up given by the Member State to the recommendation. If there is no satisfactory follow-up within the time limit set, the Commission, the European Parliament or a group of 10 Member States could resort to the 'Article 7 Procedure'.

The history of the framework to safeguard the rule of law in the European Union

Compliance with the rule of law is a prerequisite for the protection of all fundamental values listed in Article 2 TEU. It is also a prerequisite for upholding all rights and obligations deriving from the Treaties and from international law. Since 2009, the European Commission has been confronted on several occasions with crisis events in some Member States, which revealed specific rule of law problems. In his 2012 State of the Union address, President Barroso recalled that a Political Union also means that the rule of law, as a founding value of the EU, must be strengthened, announcing an initiative to this end (SPEECH/12/596). The resolution adopted by the European Parliament on 3 July 2013 and the Justice and Home Affairs Council conclusions of 6 June 2013 shared this diagnosis (see also SPEECH/13/348).

The College of Commissioners had a first orientation debate on how to better safeguard the rule of law in the European Union during its seminar in August 2013. Speaking at the Centre for European Policy Studies in September, Vice-President Reding then outlined her vision for a possible new rule of law framework for the European Union (SPEECH/13/677). At the Assises de la Justice, a high-level conference on the future of justice in the EU in November 2013 which was attended by over 600 stakeholders and interested parties, one session was specifically dedicated to the topic "Towards a new rule of law mechanism".

On the basis of all these discussions, the College of Commissioners held another orientation debate on 25 February 2014 before adopting the new rule of law framework

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

ARTICLE 7 THE TREATY ON EUROPEAN UNION

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.

The objective of this new set of rules is to give citizens back control over of their personal data, and to simplify the regulatory environment for business. The data protection reform is a key enabler of the Digital Single Market which the Commission has prioritised. The reform will allow European citizens and businesses to fully benefit from the digital economy.

Under EU law, personal data can only be gathered legally under strict conditions, for a legitimate purpose. Furthermore, persons or organisations which collect and manage your personal information must protect it from misuse and must respect certain rights of the data owners which are guaranteed by EU law.

On May 13th 2014the Court of Justice issued its judgement in case C-131/12 Google Spain.

The case was brought by a Spanish citizen Mr. Gonzalez, who complained that an auction notice of his repossessed home on Google's search results infringed his right to privacy.

The CJ has decided that an operator is, in certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name. The Court makes it clear that such an obligation may also exist in a case where that name or in formation is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

The Court added that, when appraising such a request made by the data subject in order to oppose the processing carried out by the operator of a search engine, it should in particular be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results that is displayed following a search made on the basis of his name. If that is the case, the links to web pages containing that information must be removed from that list of results, unless there are particular reasons, such as the role played by the data subject in public life, justifying a preponderant interest of the public in having access to the information when such a search is made.

EU against Facebook! The Court of Justice has declared that the Commission’s US Safe Harbour Decision is invalid

On October 6th 2015the Court of Justice issued its judgement in case C-362/14 Schrems. It declared that Comission decision concerning US Safe Haurbour is invalid.

Mr. Schrems is a privacy activist who brought a case against Facebook in Ireland. He said his privacy had been violated by the NSA's mass surveillance programs, first revealed by whistleblower Edward Snowden. Schrems is Austrian, but brought the case against Facebook in Ireland because the company's European headquarters are in Dublin.

The Data Protection Commissioner, Ireland's data regulator, rejected his case because it was bound by a legal agreement called the Safe Harbor agreement — which Schrems subsequently appealed, resulting in the current European Court of Justice case.

Safe Harbour is an agreement drawn up between Europe and the US allowing the transfer of private data on users between the two regions. There are different rules concerning data on either side of the Atlantic, but Safe Harbour harmonises them and allows for smooth transfers without worrying about differing legal frameworks.

The United States authorities were able to access the personal data transferred from the Member States to the United States and process it in a way incompatible, in particular, with the purposes for which it was transferred, beyond what was strictly necessary and proportionate to the protection of national security. Also, the persons concerned had no administrative or judicial means of redress enabling, in particular, the data relating to them to be accessed and, as the case may be, rectified or erase.

The Court stated that legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life. Likewise, the Court observed that legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, compromises the essence of the fundamental right to effective judicial protection, the existence of such a possibility being inherent in the existence of the rule of law.

On January 14th 2015 Advocate General Cruz Villalón deleivered its opinion on the ECB's Outright Monetary Transactions (OMT). In view of the Advocate General the OMT programme is in principle compatible with the TFEU.

For the first time in its history, the BVerfG has made a reference to the Court of Justice for a preliminary ruling and has done so to raise the question of the legality of the OMT programme.

In his Opinion Advocate General observed that the framing and implementation of monetary policy are the exclusive competence of the ECB. In order to carry out its task, the ECB has at its disposal technical expertise and valuable information, which, together with its reputation and communications strategy, enable it to manage expectations in such a way that its monetary policy “impulses” actually reach the economy.

Therefore, the ECB must have a broad discretion when framing and implementing the EU’s monetary policy, and the courts must exercise a considerable degree of caution when reviewing the ECB’s activity, since they lack the expertise and experience which the ECB has in this area.

The Advocate General concluded that :

The OMT programme of the European Central Bank, announced on 6 September 2012, is compatible with Article 119 TFEU and Article 127(1) and (2) TFEU, provided that, in the event of that programme being implemented, the ECB

– refrains from any direct involvement in the financial assistance programmes to which the OMT programme is linked, and

– complies strictly with the obligation to state reasons and with the requirements deriving from the principle of proportionality.

The OMT programmeis compatible with Article 123(1) TFEU, provided that, in the event of the programme being implemented, the timing of its implementation is such as to permit the actual formation of a market price in respect of the government bonds.

On December 18th 2014 the Court of Justice delivered its opinion on the draft agreement on the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms and identified problems with regard to its compatibility with the EU law.

The Court considered that the approach adopted in the draft agreement, which is to treat the EU as a State and to give it a role identical in every respect to that of any other Contracting Party, specifically disregards the intrinsic nature of the EU. In requiring the EU and the Member States to be considered Contracting Parties not only in their relations with Parties which are not members of the EU but also in their relations with each other, the ECHR would require each Member State to check that the other Member States had observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States. In those circumstances, accession is liable to upset the underlying balance of the EU and undermine the autonomy of EU law.

Given that in the event of accession the ECHR would form an integral part of EU law the advisory mechanism established by the Protocol No 16 to the ECHR could affect the autonomy and effectiveness of the preliminary ruling procedure provided for by the TFEU notably where rights guaranteed by the Charter correspond to rights secured by the ECHR.

The draft agreement allows for the possibility that the EU or Member States might submit an application to the ECtHR concerning an alleged violation of the ECHR by a Member State or the EU in relation to EU law. The very existence of such a possibility undermines the requirements established in Article 344 TFEU.

In carrying out such a review under co-respondent mechanism, the ECtHR would be required to assess the rules of EU law governing the division of powers between the EU and its Member States as well as the criteria for the attribution of their acts or omissions. The ECtHR could adopt a final decision in that respect which would be binding both on the Member States and on the EU. To permit the ECtHR to adopt such a decision would risk adversely affecting the division of powers between the EU and its Member States

The Court also expressed its view on the procedure for the prior involvement of the Court the draft agreement excludes the possibility of bringing a matter before the Court in order for it to rule on a question of interpretation of secondary law by means of that procedure. Limiting the scope of that procedure solely to questions of validity adversely affects the competences of the EU and the powers of the Court.

Moreover the ECtHR would be empowered to rule on the compatibility with the ECHR of certain acts, actions or omissions performed in the context of the CFSP, notably those whose legality the Court cannot, for want of jurisdiction, review in the light of fundamental rights. Such a situation would effectively entrust, as regards compliance with the rights guaranteed by the ECHR, the exclusive judicial review of those acts, actions or omissions on the part of the EU to a non-EU body.

Two Romanian nationals, Ms Dano and her son Florin, have brought proceedings before the Social Court, Leipzig (Germany), against Jobcenter Leipzig, which refused to grant them benefits. Ms Dano did not enter Germany in order to seek work there and, although she is requesting benefits by way of basic provision which are only for jobseekers, it is apparent from the case-file that she is not seeking employment.

The Court of Justice pointed out that, under the directive 2004/38/EC, the host Member State is not obliged to grant social assistance during the first three months of residence. Where the period of residence is longer than three months but less than five years, one of the conditions which the directive lays down for a right of residence is that economically inactive persons must have sufficient resources of their own. The directive thus seeks to prevent economically inactive Union citizens from using the host Member State’s welfare system to fund their means of subsistence. A Member State must therefore have the possibility of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence.

The Fiscal Compact (the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union; also referred to as TSCG or more plainly the Fiscal Stability Treaty), is an intergovernmental treaty introduced as a new stricter version of the Stability and Growth Pact, signed on 2 March 2012 by all member states of the European Union (EU), except the Czech Republic, the United Kingdom, and Croatia (subsequently acceding the EU in July 2013). The treaty entered into force on 1 January 2013 for the 16 states which completed ratification prior of this date. As of 1 April 2014, it had been ratified and entered into force for all 25 signatories.

Poland ratified the Fiscal Compact on 24 July 2013

The group of Sejm Deputies submitted the statute for the ratification of the Fiscal Compact to the Constitutional Tribunal for assessment as to its conformity to the Constitution (case K 11/13). The Constitutional Tribunal has discontinued the proceedings since the deputies elected in October 2015 has not upheld the motion.